The
absolute privilege for statements made in official proceedings bars a
whistleblower suit by an employee who claims he was retaliated against for
complaining about mistreatment at the hand of his supervisors, the Third District
Court of Appeal ruled yesterday.

The
justices said that Kevin Brown’s action against the Department of Corrections
was correctly dismissed under Civil Code Sec. 47(b) because it relied on
statements made as part of an official investigation into reports that Brown
had threatened to kill the supervisors.

Brown,
a corrections officer at High Desert Prison in LassenCounty,
alleged in his complaint that he was subjected to an invalid lawsuit and arrest
as a result of a January 2003 telephone call to the Office of Inspector
General, which investigates complaints of official misconduct by prison
officials and employees.

Brown
said that he told the OIG phone operator that he had been assaulted and
battered at work by a lieutenant and a sergeant. He said that he did not
threaten anyone, but that the operator asked him whether he was made enough to
kill, and that he responded that he had “been praying” and “was not ready to go
off.”

Conversation
Reported

The
operator reported the conversation to Anthony Lewis, the assistant chief deputy
inspector general. Lewis reported to officials at the prison that Brown told
the operator that he “could lose it, and if he ever lost it he could kill” the
lieutenant. Lewis forwarded the information to officials at the prison,
including the warden.

The
warden, D.L. Runnels, sued for a restraining order and injunction under Code of
Civil Procedure Sec. 527.8. The statute permits an employer, using expedited
procedures, to seek an injunction to protect employees from violence and
threats of violence.

Lassen
Superior Court Judge Stephen Bradbury found that the action had been brought in
good faith, but denied the injunction on the ground that the warden did not
prove by clear and convincing evidence that Brown had made a credible threat of
violence.

In
addition to being sued by the warden, Brown was arrested by Susanville police,
but no charges were filed by the district attorney.

Bradbury
ruled that because Brown’s lawsuit was based entirely on two official
proceedings, the investigation of his phone call to OIG and the lawsuit by the
warden, it was barred by Sec. 47(b). The Court of Appeal agreed.

Whistleblower
Act

Justice
Rodney Davis, writing for the appellate panel, rejected the contention that
applying the privilege to an investigation into the plaintiff’s report of
wrongdoing would eviscerate the California Whistleblower Protection Act, which
protects state employees from retaliation for reports of waste, fraud, or abuse
of authority, and the Labor Code section which generally protects employees in
both the public and private sectors from being retaliated against for
reporting, or refusing to participate in, illegal acts.

The
justice distinguished Shoemaker v. Myers
(1992) 2 Cal.App.4th 1407, which held that the privilege did not bar a
whistleblower suit by a former Department of Health Services investigator who
claimed he was terminated for discovering wrongdoing that was tacitly approved
by the department.

The
trial judge ruled that he could not sue because the action was in effect a
malicious prosecution action based on the administrative proceedings that
resulted in his termination, and malicious prosecution actions against the
state are barred by sovereign immunity.

The
Court of Appeal reversed, holding that the whistleblower statute created an
exception to sovereign immunity.

Brown’s
case was different, Davis
wrote.

“In
contrast to the whistleblower in Shoemaker,
Brown uttered threatening statements suspected to be criminal in themselves and
it was these statements that led to the actions taken against him on which he
bases his retaliation complaint here,” the justice explained.